Judge Blocks Indefinite Detention Provision

A New York federal district judge on Wednesday blocked a provision of the National Defense Authorization Act that could be read to authorize the federal government to indefinitely detain people who were “substantially” or “directly” “supporting” the Taliban, Al Qaeda or its allies. The plaintiffs in this case included journalists and writers who feared that their reporting about Al Qaeda or the Taliban might subject them to detention under this law.

The government argued that the provision merely restated its existing detention authority, and did not impose any new burdens on the First Amendment. But District Judge Katherine B. Forrest rejected that assertion outright, pointing out the “logical flaw” in “stating an intention not to expand authority when Congress has set forth what is, in fact, new and broad authority,” the scope of which the government was not willing to define:

The Government did not–and does not–generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.

A key question throughout these proceedings has been, however, precisely what the statute means–what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent from § 1021(b)(2). Understanding the scope of § 1021(b)(2) requires defining key terms. At the March hearing, the Government was unable to provide definitions for those terms.

Forrest temporarily blocked the law in May. In its arguments before that decision, the government “was unable to provide … any assurances” that the law “would not in fact subject plaintiffs to military detention” for engaging in writing and other activities protected by the First Amendment. She said the government later changed its position, but would not state that covered First Amendment activity was protected under the law.

Wednesday’s ruling has been rightly hailed by many commentators as a rare civil liberties victory at a time when limits on government national security power are few and far between. But the decision makes an assumption about the NDAA that some have questioned because an amendment to the law seems to suggest that it was not as broad as Judge Forrest suggests. American University law professor Steve Vladeck laments at Lawfare that Forrest assumes the NDAA confers the power to detain U.S. citizens, even though “the entire point of the Feinstein Amendment was to quell concerns that the NDAA might covertly authorize the detention of U.S. citizens or other individuals within the United States.” Vladeck worries that this assumption distracts from “real and serious” concern about the potentially broad and unknown scope of the law’s impact on non-citizens detained and arrested outside the United States.

This rare victory for civil liberties in a national security case could be short lived, as the government has already filed an appeal to the Second Circuit.